The verdict in the Duma arson case could tear the country apart

The arson attack on the Palestinian Dawabsha family home killed 18-month-old Ali and his parents, Sa’ad and Riham.

A PALESTINIAN boy looks at the damage at the Dawabsha family’s home in the West Bank village of Duma, 2015

(photo credit: MIRIAM ALSTER/FLASH90)

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Barring a second wave of coronavirus, the Lod District Court will rule on Monday on one of the most controversial cases impacting Israeli-Arab relations: the verdict in the Duma arson murders of July 2015.

The arson attack on the Palestinian Dawabsha family home killed 18-month-old Ali and his parents, Sa’ad and Riham.

For months after that, the Shin Bet (Israel Security Agency) performed a massive manhunt and investigation, but turned up empty-handed.

Former Shin Bet chief Yoram Cohen has told The Jerusalem Post that he fundamentally altered the entire approach toward Jewish terrorism against Palestinians, taking a much harder stance and investing far more resources.

Prime Minister Benjamin Netanyahu and then-defense minister Moshe Ya’alon made frequent statements about the severity of the incident, and assured regional partners in the Palestinian Authority, Jordan, Egypt and globally of their commitment to bringing the perpetrators to justice.

When the Shin Bet finally apprehended Amiram Ben-Uliel, then 21, the alleged murderer of the Dawabshes, as well as a minor who was accused of conspiring with Ben-Uliel regarding the murders, the situation was viewed as so desperate that they used torture/enhanced interrogation to get the defendants to confess.

This ushered in a whole new side and saga to the case, as suddenly enhanced interrogation, administrative detention and other extreme measures were being used not only against Palestinians, as in the past, but also against Jews.

Yamina MK Bezalel Smotrich and activist Itamar Ben-Gvir have accused the Shin Bet and prosecution of massive overreaction and injustice in the treatment of Ben-Uliel and the minor.

Joint List Party leader Ayman Odeh and other Arab activists have demanded that harsh justice be meted out to Ben-Uliel, if Israel is to avoid accusations that it cracks down harder on Palestinian terrorism than on Jewish terrorism.

Hussain Dawabshe, grandfather of Ali, told the Post on Thursday that “this trial dragged on for too long. How can it be that it took five years?”

He added that Ben-Uliel “deserves the death penalty.”

When the Post noted to him that there is no death penalty, he responded, “Then he should at least be in jail for the rest of his life.”

Also, Hussain said that it is important to “finally end this, after five years. The hurt is always there, but of course it returns even more when we see that person who did this,” and he has not yet been given a final sentence.

The Ben-Uliel family declined to discuss the trial on Thursday, but in the past, they and the right-wing legal aid group Honenu have slammed the Shin Bet and the prosecution as torturing and framing Ben-Uliel because they could not find the true perpetrators.

From the indictment in January 2016 until June 2018, there was a pretrial minitrial over whether the defendants had been tortured or only exposed to “moderate pressure,” which is sometimes permitted in Israel to prevent a potential impending terrorist attack.

The decision in that minitrial did not automatically decide the innocence or guilt of the defendants.

However, it likely signaled the direction in which the court was leaning, and was a bombshell in the wider debate about the Shin Bet using enhanced interrogation and other measures on Jews accused of terrorism or more violent price-tag actions.

The June 2018 Lod District Court decision by judges Ruth Lorch, Tsvi Dotan and Dvora Atar confirmed the validity of key confessions of Ben-Uliel, giving the prosecution a strong chance to convict, while disqualifying key confessions given by the case’s minor defendant.

The mixed blockbuster decision also disqualified some of the main defendant’s confessions made while, and 36 hours after, enhanced interrogation was used on him.

Overall, the Justice Ministry and the Shin Bet emerged with a strong lead toward winning their flagship fighting-Jewish-terrorism case against Ben-Uliel.

However, as the court declined to rule on whether the Shin Bet tortured or used legal enhanced interrogation, future rough treatment of Jewish extremists was still up in the air, and the multiple disqualifications hit the Shin Bet like a ton of bricks.

Regarding the minor defendant, he was eventually convicted for lesser price-tag attacks and a vague role in the Duma case, but was acquitted of most of the serious Duma charges.

After the decision, Cohen, who retired from the Shin Bet in the middle of the case, said that the agency would need to make tactical adjustments in the treatment of Jewish terrorism suspects.

Since the June 2018 decision and a later decision about mistreatment and manipulation of a defendant accused of a price-tag attack, the Shin Bet ceased using enhanced interrogation and administrative detention on Jews.

In one instance in February where former defense minister Naftali Bennett signed an administrative detention order against a Jew, he reversed himself within 48 hours, angering the Shin Bet, which was not used to rejection in such cases.

Although the Shin Bet has not come out and said it explicitly, there has been an implication that when the state indicted only one Jewish minor in the rock throwing that killed Palestinian woman Aysha Ravi in October 2018, part of the reason others were released was that the harshest measures were not used to obtain confessions.

Instead, since the June 2018 ruling, alleged Jewish terrorism cases have seen exceptional measures, but much tamer in relative terms.

The Shin Bet seems to have dropped enhanced interrogation and administrative detention, and has hoped to crack alleged Jewish terrorism cases by preventing Jews from meeting with their lawyers for between a week and the 21-day limit (administrative detention would allow a much longer period).

In turn, this reduction of pressure on Jewish detainees has yielded mixed results, with multiple probes appearing to release many suspects whom the Shin Bet implied it had intelligence on (which cannot be used in court), but had to let go because no one confessed.

In the probe of who killed Ravi, only one of five suspects who were held for weeks was eventually indicted after none of them confessed.

There may be issues with even that case, which is based almost entirely on DNA evidence, and has been swamped with pretrial battles and motions over the evidence now for around 17 months. The witness stage of the trial in that case is only starting in the near future and could extend for well over another year.

AND WHAT will be the fate of Ben-Uliel on Monday?

According to the indictment, he and the minor had discussed in June 2015 ways they could take revenge on Palestinians following the murder of Malachi Rosenfeld.

The two planned one attack on Duma and another on the Majdal village nearby, hoping to murder the residents of houses in those locations.

Ben-Uliel prepared a backpack with two Molotov cocktails full of gasoline, a lighter, matches, gloves, and spray paint.

On July 30, 2015, Ben-Uliel left his house wearing heavy clothing and with the backpack to meet with the minor at Yishuv Hada’at.

When the minor did not show (something that the prosecution has never explained), and after Ben-Uliel had waited for a while, he decided to perpetrate the terrorist attack on his own.

This is a crucial issue since Ben-Uliel’s lawyer, Asher Ohayon, has highlighted a range of contradictions to the state prosecution’s case. One contradiction is that a key Palestinian witness said he had seen two attackers at the scene (when the prosecution says that only Ben-Uliel was there), and that there were two sets of footprints found near the scene, neither of which correspond to Ben-Uliel.

The indictment said that Ben-Uliel reached Duma and then tied part of a shirt around his face to function as a mask obscuring his identity and donned the gloves. He spray-painted “revenge” and “long live the Messiah” on the walls of a house, which he attacked with a Molotov cocktail – but no one was there.

Next, he moved on to the Dawabshe house, failing to burn it with one Molotov cocktail due to two closed windows, but succeeding in burning it down when he found a third window.

In closing arguments, prosecutor Atzmon noted that in the many interrogations Ben-Uliel underwent, there were points where he confessed to the arson murder, and that he also reconstructed the crime scene at Duma.

In addition, the prosecution pointed out that Ben-Uliel declined to testify in the trial, which is usually held against a defendant.

Moreover, Atzmon argued that incriminating statements by the minor coconspirator of Ben-Uliel should count against him.

Ohayon worked hard to convince the judges that Ben-Uliel’s confession should not be given much credibility compared to other evidence.

Further, Ohayon attacked the reconstruction that Ben-Uliel gave, noting that the defendant mistakenly said that certain large and noticeable pillars were new to the area, citing this as proof that he had not been there.

The prosecution admits that the Dawabshes’ attacker would likely have seen the pillars.

Ohayon also brought a handwriting expert to prove that Ben-Uliel could not have written the anti-Arab messages written in the area of the arson.

Judge Lorch pointed out that the prosecution had poked holes in the handwriting expert’s argument on cross-examination.

Essentially, the prosecution said that Ben-Uliel should be convicted because his confession and reconstruction were too detailed to have been given by someone who had not perpetrated the crime.

Regarding inconsistent details, the prosecution offered alternate explanations that kept the focus on Ben-Uliel, such as that the Palestinian witness who saw two people possibly saw two villagers who beat him to the scene to see what was happening, after Ben-Uliel had fled.

Ohayon explained that even specific details that Ben-Uliel told his interrogators could have come up in hints from his Shin Bet interrogators.

However the court rules, Jewish-Arab relations and Israelis on both sides of the political spectrum are about to be shaken up by next week’s blockbuster decision.

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